July 03, 2024
By Júlia Miklasová
On 25 June 2024, the Grand Chamber of the European Court of Human Rights rendered a long-awaited judgment (combined applications No. 20958/14 (merits) and 38334/18 (admissibility and merits)) in an inter-State case of Ukraine v. Russia (re Crimea). In this unanimous judgment, the Court found Russia responsible for the violation of the majority of the substantive provisions of the Convention on account of its administrative practice in Crimea since 2014. Undeniably, this is a significant victory for Ukraine.
The judgment was issued against the backdrop of Russia ceasing to be a State party to the ECHR from 16 September 2022 onwards and its lack of cooperation with the Court (para. 909; Russia remained silent after submitting its memorial on 28 February 2022, para. 854). Spanning 346 pages, it covers a wide range of legal issues that have already attracted commentaries (see here and here) and certainly will continue to do so.
This comment, therefore, zooms in only on a number of specific issues, in particular the way the Court has approached the assessment of administrative practice entailing the violation of Article 6 ECHR, the general issue of ‘lawfulness’ under the Convention and the accommodation of the rules of IHL and general international law in the interpretation and application of the Convention. It also evaluates the relevance of these findings to the pending cases.
According to Ukraine, pursuant to a Russian Law on Admission of Crimea of 21 March 2014, Russian courts in accordance with the Russian legislation were to be created in the ‘Republic of Crimea’ and the City of Sevastopol before 1 January 2015 (para. 53). Ukraine argued that Russia did not justify the extension of its laws to Crimea (i.e., including those based on which the Russian courts were established there) and the replacement of the laws in force in the occupied territory based on IHL (especially, the exceptions under of Article 64 GCIV) (para. 54). Such an assessment made clear that the relevant law on the basis of which Crimean courts had to be established and function in this case was Ukrainian law (para. 1001). As a result, among others, Ukraine argued that the courts in the peninsula failed to meet the ‘established by law’ requirement of Article 6(1) ECHR (para. 1002).
Russia pointed to its laws and acts related to the creation of the Russian courts in Crimea, underscoring that the Russian court system in Crimea “had been established on the basis of a law that met the criterion of legal certainty” (para. 215). The extension of Russian legislation to Crimea and the creation of Russian courts based on it “was in full compliance with Article 6 of the Convention” (para. 1007).
The Court paved the way for assessing compliance with Article 6 ECHR in several steps. First, it restated the findings of the 2020 admissibility decision (regarding application No. 20958/14) when the Court established that Russia “exercised extraterritorial jurisdiction over Crimea on account of ‘effective control'” in the relevant period between 27 February 2014 and 26 August 2015 (para. 864). Notably, the Court reiterated that Russia’s effective control over Crimea drew from “the technical, tactical, military and qualitative superiority and conduct of the Russian military forces, who had ‘boots on the ground’ without the consent of Ukraine.” (ibid). Relatedly, concerning application No. 38334/18, the Court found the conclusion regarding Russia’s extraterritorial jurisdiction “to be valid after 26 August 2015” (para. 873).
Second, building on the long-held formula that “the provisions of the Convention cannot be interpreted and applied in a vacuum” (para. 912), the Court restated its principles on the interplay between IHL and the Convention. Highlighting “the factual basis on which the respondent State obtained extraterritorial jurisdiction” and referring to the views of the OHCHR, several NGOs, and the Prosecutor at the ICC (on whose reports the Court placed some reliance in its admissibility decision) regarding Russia’s occupation of Crimea, the Court decided it was appropriate to consider the rules of IHL when interpreting and applying the Convention (para. 918).
Third, the Court examined “the general issue of ‘lawfulness'” under the Convention. It first divided the existing cases on this topic into two groups (paras. 929-930). The first group concerned Loizidou, in which the Court denied legal validity to a provision of the Constitution of the Turkish Republic of Northern Cyprus (TRNC) (para. 929). The second group consisted of the cases in which the Court considered the lawfulness of the acts of the TRNC, Transnistria and Abkhazia. Notably, while the Court accepted the law of TRNC as ‘domestic law’, it did not come to such a conclusion regarding the law of Transnistria, because it did not find ‘a system reflecting a judicial tradition compatible with the Convention similar to the one in the remainder of the Republic of Moldova’ (para. 930). The latter conclusion also applied to Abkhazia.
The Court distinguished the present case from these previous ones on several grounds (paras 931-2). Among other things, the Court emphasized that “whereas the above-mentioned cases concerned the ‘law’ of internationally unrecognized entities, the present case concerns the application of Russian law and the acts of ‘Russian courts'” in Crimea (para. 932). The Court even distinguished the present case from Cyprus v. Turkey, emphasizing that the latter “concerned the continued application of pre-existing Cypriot law valid in the territory of the ‘TRNC’ before Turkey had obtained actual control of that territory, whereas the present case concerns the application in Crimea of the law of the Russia Federation…replacing the previously applicable and valid Ukrainian law” (para. 932).
Decisively, the Court considered IHL when interpreting the general issue of lawfulness under the Convention (para. 942). It outlined the rules of IHL obliging the Occupying Power “to maintain the laws in force in the occupied territory (predating the occupation) and not modify or suspend or replace them with its own legislation” and the limited exceptions thereto (most prominently, those of Article 43 Hague Regulations and Article 64 GC IV) (para. 938 ff). The Court noted that Russia did not offer any arguments concerning IHL. It also considered the “general and wholesale” and immediate “replacement of Ukrainian law irrespective of the individual circumstances and potential needs of the existing population in Crimea, or the property, security forces or administration of the Russian Federation, or of the need to maintain the orderly government of the territory” (para. 944).
Ultimately, it found that “when the respondent State extended the application of its law to Crimea, it did so in contravention of the Convention, as interpreted in the light of IHL. Accordingly, Russian law cannot be regarded as ‘law’ within the meaning of the Convention and any administrative practice based on that law cannot be regarded as ‘lawful’ or ‘in accordance with the law'” (para. 946).
The implications of this conclusion were far-reaching as they underpinned the Court’s assessment that Russia did not fulfil the requirement of lawfulness throughout the majority of judgment. Regarding Article 6 ECHR, the Court held that from the moment of Crimea’s admission into the Russian Federation under Russian law, “the judicial system functioning in Crimea operated on the basis of Russian law” (para. 1016). It assessed this fact against the rules of IHL and its findings on the general issue of lawfulness. The Court held that Russia “did not explain why it had been necessary to replace the overall pre-existing Ukrainian legal and judicial system with that of the Russian Federation” (para. 1018). Ultimately, it concluded that “the judicial system functioning in Crimea after the ‘Accession Treaty’ cannot be regarded as ‘established by law’ within the meaning of Article 6 of the Convention” (para. 1019) and as a result, “there has been a violation of Article 6 of the Convention” (para. 1022).
The Court’s approach to “the general issue of lawfulness under the Convention” (particularly, the accommodation of the rules of IHL as outlined earlier) and how it distinguished this case from its previous case law in this regard is critical. The Court effectively limited the scope of the standards developed in the present case only to instances of full-fledged annexation (even though the Court never explicitly used this term). It did not overrule its previous approach regarding the lawfulness of the acts of internationally unrecognized entities (existing in the context of another State exercising effective control over them under Article 1 ECHR). Consequently, the questionable standard of assessing whether the ‘law’ of such entities reflects judicial tradition compatible with the Convention (see for a critique of this approach, Lagerwall 272-273, Ronen 93; forthcoming Miklasová 295-305 and 693-4) is likely to persist in similar cases that fall short of annexation (e.g., in Ukraine and the Netherlands v. Russia, which concerns the Donetsk and Luhansk People’s Republic before Russia’s annexation). However, several points highlight the proximity between the line of case law regarding internationally unrecognized entities and this case, which would have called for applying the same legal framework as in this case (accommodating the rules of IHL) already in earlier case law.
First, admittedly, this case marks the first instance of annexation in the Court’s jurisprudence. Nevertheless, the law of occupation was of decisive importance here. In this context, the Court also previously referred to the ‘occupation’ of northern Cyprus (TRNC was referred to as ‘a territory unlawfully occupied’ in Cyprus v. Turkey, para 101; in Loizidou, the Court referred to more than 30.000 personnel of the Turkish armed forces “stationed throughout the whole of the occupied area of northern Cyprus” (para 16)), yet without applying the same legal standards as in the present case. Relatedly, it is true that when specifically assessing the violation of Article 6 ECHR in Cyprus v. Turkey, the Court considered that the court system in TRNC reflected the “common-law tradition of Cyprus” (para. 237), while this case concerns the replacement of Ukrainian law with Russian law. However, this former aspect in Cyprus v. Turkey was just one part of the evaluation of violation under Article 6 ECHR; the assessment under the Convention in light of IHL was not provided.
Moreover, to distinguish this case, the Court emphasized that until now, it dealt with the ‘law’ of unrecognized entities. Nevertheless, even those earlier cases were evaluated through an inter-State paradigm, as the internationally unrecognized entities existed in the context of another State exercising effective control over them under Article 1 ECHR. In fact, the Court viewed the legal institutions of unrecognized entities as the legal institutions of the respondent States. For example, it considered remedies in TRNC as domestic remedies of Turkey (Cyprus v. Turkey, para 102; see Crawford, 384; forthcoming Miklasová 301-302).
Additionally, Abkhazia, South Ossetia, and arguably Transnistria can also be considered occupied by Russia (see, among others, RULAC here and here; PACE Opinion 300 (2022), para. 5). Yet, for example, in a recent Georgia v Russia (IV) concerning Abkhazia and South Ossetia, the Court did not see the rules of IHL as relevant in the similar context of assessing violation under Article 5(1) ECHR (paras. 52-55).
Arguably, this case, therefore, highlights the gaps in the framework applied in the previous cases. As mentioned, given the Court’s reasoning, the latter will likely continue to be applied to hybrid situations of occupation (by proxy) of unrecognised entities when falling short of a complete annexation.
In para 919 the Court stated that interpreting and applying the Convention in light of IHL “has no bearing on the issues pertaining to Crimea’s status under international law, which, as stated in paragraph 244 of the admissibility decision ‘are outside the scope of the case.'” A closer look at the judgment reveals a different picture (similarly, Milanović). While, undeniably, the Court did not directly rule on the question of territorial status (lacking the competence to do so), its overall approach has at least an implicit or indirect bearing on this matter.
First, the applicability of the law of occupation is premised upon the non-transfer of sovereignty. “Occupation creates an exceptional situation in which the link between sovereignty and effective control is suspended” (Cuyckens, 71). The law of occupation “can be seen as indirectly defining the concept of sovereignty and protecting the sovereign’s title” (Benvenisti, 1-2). By considering Russia as the Occupying Power, the Court therefore implicitly confirmed Russia did not hold sovereignty over Crimea (see, Milanović).
Second, the Court ultimately considered that Ukrainian law and not Russian law should be the basis for evaluating the condition of legality under the ECHR. For example, regarding Article 9 ECHR, it stated that “the Russian law cannot be regarded as ‘law’ within the meaning of the Convention and […] any individual acts constituting practice complained of are to be examined by reference to the requirements of Ukrainian, not Russian law” (para. 1075). The continuing relevance of the legislation of Ukraine as the displaced sovereign in an occupied Crimea is an attribute of Ukraine’s continued sovereignty there.
That said, compared with previous cases, the Court was notably silent regarding matters of general international law, especially when it came to the unlawfulness of Russia’s control over Crimea. It did reiterate its commitment to systemic integration, highlighting that “the Court has never considered the provisions of the Convention to be the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties” (para. 912). However, the Court only considered the rules of IHL, and did not touch on issues of legality under jus ad bellum.
By contrast, for example, in Loizidou the Court refused to attribute legal validity to a provision of the TRNC constitution by reference to the resolutions of the UNSC and other international bodies and the positions of States according to which “the Republic of Cyprus has remained the sole legitimate Government of Cyprus” (para. 44). Elsewhere, the Court referred “to the illegality of the ‘TRNC’ under international law” (Cyprus v. Turkey, para. 236) and to Transnistria as “an entity, which is illegal under international law” (Ilașcu, para. 436). Even the references to the Namibia exception in other judgments (Loizidou, para 45; Cyprus v. Turkey, para. 90) – however problematic – (see for the criticism Lagerwall 272-273; Ronen 88-98) a contrario did underscore the relevance of the broader general international law framework of the consequences of illegality (see Lagerwall 278). No such references have been made in the present judgment.
Fundamentally, however, the results of the interpretation of the Convention in light of IHL in the present case were far-reaching (consequentially, Russia did not justify its actions based on IHL exceptions at all) and prima facie aligned with the principle that the official acts of an unlawful occupant concerning the unlawfully occupied territory are invalid, as expressed in the Namibia advisory opinion (para. 125, however, see for a detailed analysis of the interplay between IHL, the ECHR and the effects of territorial illegality: forthcoming Miklasová, 370 ff). Nevertheless, the Court’s sole reliance on IHL must be viewed against the clear position of other CoE bodies underscoring “the illegal annexation of Crimea” (eg, PACE Opinion 300 (2022), para 5 (emphasis added); PACE Res 2034 (2015), para 4.1).
The consequential incorporation of general international law on the legality of Russia’s control of Crimea can be found in the 2020 admissibility decision. To define the nature of Russia’s jurisdiction over the peninsula after Crimea’s ‘admission’ into the Russian Federation as extra-territorial, the Court stated that it cannot disregard the UNGA resolution 68/262 (on territorial integrity of Ukraine), subsequent resolutions and the resolutions of other international bodies, noting that “a number of States and international bodies have refused to accept any change to the territorial integrity of Ukraine in respect of Crimea within the meaning of international law” (para. 348). The implications of this conclusion resonated throughout this judgment. Without defining Russia’s jurisdiction as extra-territorial, the law of occupation could not have been applied (see Milanović’s critique of the Court’s approach to seeing Crimea as occupied by Russia).
This is a strong and bold judgment of the Court – particularly on the issue of the interplay of the Convention with the rules of IHL and its effects on the requirement of lawfulness under the Convention. Incidentally, by considering Russia as the Occupying Power, the Court implicitly confirmed Russia does not hold the sovereign title in Crimea. However, despite this robustness regarding IHL, the judgment is silent regarding general international law (even in comparison with similar cases). Ultimately, this judgment’s relevance may be limited as its reasoning is tailored only to situations of annexation. Russia’s actions following the annexations of the Ukrainian territory on 30 September 2022 fall outside of the Court’s jurisdiction ratione temporis as Russia ceased to be the party to the ECHR on 16 September 2022.
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